Abstract
The Waqf
Funds and Properties as a Source for Sustainable
Development in Malaysia
The Islamic concept of trusts is named waqf where an owner donates a land or property for a specific
cause or the general welfare of Muslim community. Waqf is thus divided into family trust and charitable
endowment the latter being subdivided into specific and general. Irrespective of its classification, the
fundamental idea in the
Legalisation of waqf is the perpetual characteristic of its object which is intended for the wellbeing of
present and future generations. This concept of waqf is derived from the very words of the prophet who
told the second Caliph, as the later asked for advice, to keep the property and release its usufruct for the
benefit of the poor and needy. Two hundred years later when the jurists were speaking about waqf they
interpreted the events in the Prophet’s time or his companions in such a way that some aspects of the events
became the essential elements of waqf. Among them are the element of perpetuality, compliance to the
wishes of the grantor, and its administration.
While waqf was intended to be the third sector, other than government and business enterprises, in the
economic chart, throughout the centuries, the institution of waqf, unfortunately, became a place for
corruption and in some instances an obstacle to development. This either resulted in conversion of waqf
property to normal or a subject of critics and blaming. On the contrary, the Malaysian Government has
managed reform or amend the problem first by passing laws that would abolish the rigidity inherent to the
legal framework of the waqf , and second administer it in such a way that, so far, has resulted in a cluster
of activities ranging from development of virgin lands, towns, and plantations up to the socio-economical
welfare of various communities.
While the institution of waqf has contributed productively to the social and economic development of the
societies, thus far, there is wide range of issues relating to development and its sustainability that still need
to be looked at. These issues include the modernisation of the legal frame work, first, and the integration of
resources as well efforts, attraction of new funds, professional management thereof, alone or in partnership
with centres of higher learning, corporation with government and city planners for purposes of using a
portion of the accumulated returns from waqf funds to finance activities such as health, education, water
and sanitation, environmental as well technological studies, social and scientific research, and so forth.
1
The Waqf (Islamic Trusts and Charities) Funds as a Source for
Sustainable Development
By Dr Mohammad Tahir Sabit
Universiti Technolgi Malaysia
Introduction
The very basic idea of the waqf is as religious as it is relevant to the present theme of the conference, urban
sustainable development. The idea of waqf today implies the preservation of the past and the conservation
of the present landed or fluid assets for human wellbeing now and then. While the religious aspect of waqf
makes such asset immune to total destruction the objective and purposes of such funds make them in the
forefront of development and productive utilization. They are not touchable in a sense of being perished but
are accessible to any body who are interested in their development and upgrading provided they understand
the nature of such properties and develop them within the framework of Islamic law.
Since the very early age of Islamic civilization1, landed properties were reserved, by Muslims, for the
general good of living poor and needy both and also for the welfare of the future generations. This
reservation was not known as waqf but a permanent charity. The charities that were later classified as waqf
or habs in the early days of Islam were used for purposed of welfare activities such as for the building of
mosques, feeding the hungry, assisting the needy and the poor, activities, which can be classified under
sustenance development today.
In the very early Islamic History there are four inspiring events which are taken as cornerstone of for the
development of legal framework of waqf . The first is the building of Quba’ Mosque soon after the Prophet
of Islam migrated to Medina. The second is the making of the water of rumah (a well bought by sayidina
Uthman (r) the third Caliph for public benefit only after the holy Prophet promised that whoever buys the
well would be rewarded in the paradise, which was made available to all Muslims in the city of the
Medina.) It is clear that the construction of a Mosque is the secondary need of community and being so it is
solely a religious task that would help cities to have morally upright citizens and in turn law-abiding and
honest individuals who respect the rights of others and try not to cause harm to them. The buying of the
well is perfect example of supply of water for the needs of the city dwellers. The third event is reported that
when the verse (By no means shall ye shall attain piety until ye spend of that which ye love’ was revealed
Talha (r) offered to give his much-loved garden in charity but the Prophet (p.b.u.h.) advised him to do so in
favour of his own nearest and dearest. This established the first family trust in Islam. The fourth event and
the first formal and clear charitable waqf created during the life of the Prophet (p.b.u.h.) is that of Umar
ibn al-Khattab (r), when he asked the advise of the Prophet (p.b.u.h.) about his most valuable land in
Khayber, the Prophet (pbuh) told him “retain the thing itself and devote its fruits to pious purposes- habbis
aslaha wa sabil thamarataha”. Umar wrote it in a document and give witness to that effect during his rein
as the commander of the faithful. The document read that “it [the property] should neither be sold nor made
the subject of gift or inheritance; that it was sadaqah for the poor, relative, to set free slave, wonderers,
guests and for the way of Allah, there be no sin for the administrator to eat from it in moderation or feed
friend, but not to accumulating therefrom.”
1
Throughout history there were some forms of trusts in Egypt and Rome. The trusts that recognised Islam have some
resemblance in general with those practices of Church, but they are different for the ownership of the trust property
does not shift to the beneficiaries or its trustees under Islam. In Europe, after the collapse of Romans, no other forms of
trusts were known. There were Islamic trusts in Islamic Spain and only in 13th century some trust institutions were
created in Germany. Charities were recognized in England only in 1601 by passing a legislation dealing with the
subject.
2
Based on these events mentioned above, the jurists of Islam founded the theory of trusts (waqf ) and then
divided it into a variety of classes which will be discussed below. But before we venture into the
classification and other details of the waqf it is necessary to explain the meaning of the term and its legal
implications.
The meaning and definition of waqf
The familiar and often used term for trusts in Islam is waqf , which sometime is written as wakaf or wakap
in South East Aisa. In Northern Africa they use the term habs or tasbil for the same concept with the
exception of Shi’i scholars who differentiate between waqf and habs, both charitable but have slightly
different implication.2
Both waqf and habs imply ‘to prevent’, or ‘to restrain’ but under the law it means “to protect something,
to prevent it from becoming the property of a third person”. 3 The classical definition of the waqf is of that
given by Imam Abu Hanifah saying “the appropriation of any particular thing in such a way that the
founder’s right in it shall continue and the advantage of it go to some charitable object.” This definition
however is not preferred by his disciple i.e. Abu Yosuf and Mouhammad as well as jurists in other schools.
Abu Zahrah defined it as “the prevention of a benefit-generating estate from corporal disposal but using its
usufruct and benefit in charity, intended so at the time of creation and thereafter.”4 The sound and very recent
definition of te waqf is “the holding of certain property and preserving it for the confined benefit of certain
philanthropy and prohibiting any use or disposition of it outside that specific objective.”5 Abu Zahrah defines
the waqf in a generic manner, he includes the fundamental ideas as proposed and agreed by all jurists
unanimously, while still upholding the idea that the property should be immoveable and that the donation such
property should be in perpetuity. The last definition is a liberal approach to the idea of waqf that brings together
almost all those elements which some of the classic jurists avoided and others incorporated them in their
concept of waqf. If one has to follow the last approach, waqf would include all types of charitable donations that
have the capability of income generation or repeatable usage even though such is limited by time due to either
the nature of the property or the intention of the donor. The author of this definition excludes consumable
charities only. Any other property either movable or immoveable, currency or otherwise, any property
including that can generate income or benefit or be used as a capital (i.e.labour, service, lending to be hired for
charity, etc.) are comprised in the definition of the waqf which can be managed and administered for the
purpose of income generation and a portion thereof could be used for the well-being of the needy public. It will
also include those properties, which are donated for a specific purpose or time within the range of a day, week,
month or a year. Another characteristic of this definition is that it insists on the maintenance of the property as a
perpetual or repetitive capital, its profitable investment and productive utilization. The next distinctive feature
of this definition is that it allows the creation of waqf in a way where only the founder of the waqf can
determine its terms and conditions thus leaving no room for courts to impose its conditions. The last
characteristic of this view is that the property so donated shall be managed and administered prudently and
productively and that its income shall be made available to the beneficiaries named therein.
See Yahya bin Sa ‘id al-Hilli, al-Jami‘ li al-Shara’i‘, Qum: Musassah al-Shuhada’ al-‘Ilmiyyah,1405 A.H., p. 368.
The difference between waqf and habs is in the contents not the usage of the term. Al-Hilli uses habs in donation of
perishable property for a specific charitable purpose for a limited period where the property reverts to the owner in case
the purpose is no longer practical. Hilli explains the term waqf with habs but waqf property according to Hilli does not
go back to the original owner or the heirs of the original owner after he passes away: p. 369. Though it is some how
confusing for Hilli exemplifies habs with house, animal, and slaves which he also repeats them among others under
waqf . It seems that one shall have to look at the words used by the donor at the time of making the gift in order to infer
his intention.
3
Al-Sarakhsi, al-Mabsut, Cairo, 1956, vol. 12, p. 27, translation by Mohd. Zain b. Haji Othman, Islamic Law with
special Reference to the Institution of Waqf , Kuala Lumpur: Prime Minister’s Department, Religious Affairs Division,
1982, p.21. see the definition of waqf in al-Hilli, al-Jami‘, p.369.
4 Muhammad Abu Zahrah, Muhadarat fi al-Waqf , np: Dar al-Fikr-alArabi, second Edition, p. 5.
5 Munzer Qahf, see also his al-Waqf al-Islami, Tatawurruh, Idaratuh, Tnmiyyatuh, Damiscus &Beirut: Dar al-Fikr, 2000,
p. 62.
2
3
The nature of Waqf
Waqf is not perpetual as it is not binding on the grantor according to Imam Abu Hanifiah and Zufar,6 who
have relied on one hadith or tradition of the holy Prophet as well as the opinion of syidina Ali (r), Ibn
Masud, Ibn Abas. Other jurists do not agree with the above opinion because they have relied on different
authority in the tradition of the Prophet.
An undertaking that establishes waqf, is final if the waqf is founded for the benefit of a class of people, in
case, the beneficiary is a specific person jurists do not agree on this point. According to Malakies and
Hanafies the undertaking is final only if the beneficiaries accept the waqf . One opinion in the Shafi‘i
school and likewise one in Hanbali school of legal thought agree with the Hanafi and Maliki jurists.
The objective and purpose of waqf
The determination of the objective and purpose of the waqf depends on the intention of its founder, the
most important of them are seeking reward from Allah, humanitarian purposes i.e. assisting poor and the
needy and protection of descendants from poverty and hardship. Based on such objectives of waqf , it is
classified as
1. Charitable
2. Family.
Charitable waqfs may be spent on specific class of individuals such as, poor, needy, old, sick, widows,
orphans, travelers etc. or any one or anything if doing so is beneficial to the society at large. Family waqf
includes the owner/founder, children, and charitable work. (Charitable purposes read by courts into the
family waqf documents).7
In the case of family waqf, jurists allow selling it, if the family becomes poor, or if it could be understood
from the written document of the waqf according to others.8 It needs to be mentioned that waqf on the
donor himself is rejected by a majority of jurists, Malikies and one view in Shaffii, and Hanbali schools
allows so.9 The reason for this is that waqf repudiates individual ownership, therefore it would be pointless
to presume the donation of a property valid while its proprietary rights are concentrated in the previous
owner of the property so donated. The whole purpose of waqf is to prevent himself from spending such
property. It is similar to that if one were legally able to sell or lend his property to himself.
The constituent of waqf
1.
The donor: Since waqf by nature is an act of donation or unilateral transfers, it comes under general
concept of gifts (tabaru’at). A document that bears testimony to donation shall be signed by one who
is legally competent: major, sane, sober and free from other legal restrictions.
2.
The beneficiaries: the first condition for a person to be the recipient of waqf property, he should be
capable of being an owner, irrespective of being real or legal; thus real persons, mosque, hospitals etc.
would be the beneficiaries of waqf property. The donation must be morally correct according to
Hanafies and Hanbalis. To Shafies and Malikies moral rectitude is not the condition but it shall not be
a sin such as waqf on church, and on the enemy of the state. The beneficiaries, otherwise, could be a
Muslim or non-Muslim citizen (dhiminis) rich and so on.
6
This view has been adopted by Sudanese Supreme Court in its directive 57-58.
Muhammad Abu Zahra, Muhadarat fi al-Waqf , p. 50.
8 Abu Zahra, Muhadarat, P. 197 – 207, al Dardir, Sharh al-Kabir, Vol. 4 P. 89; Hasan Abdullah al-Amin , al-waqf fi
al-fiqh al-Islami, p. 114, in Idara wa Tamiyah , Jeddah. 1994
9 Ibn Qudamah, Al-Maghni, Vol. 6 P196, al –Ghazali, al-Wajiz, Vol. 1 P. 245, Beirut, Dar al-Ma’rifah,; al Dardir
Sharh al-Kabir, Vol. 4, P.80, Ibn Abidin, Radal-Mukhtar Vol. 4, P. 385.
7
4
The waqf property
According to Hanafi jurists the donated property shall exist perpetually. The Hanafies do not allow
movable property as the subject matter of waqf except fixtures,10 such as buildings, trees and those which
are essential for maintenance and development of immovable property as animals, workers, and tools for
farming. The majority of jurists allow the subject matter of the waqf to be either movable or immovable as
long as it can be used and its body remain intact without any damage. Such property can be anything that
could be sold or being used while it is still intact such as estate, tools, furniture and the like. 11 Shafi‘i jurists
hold similar view. The Malikies, however, allow any property that could be owned, including property that
may not be considered as the subject of sale and purchase agreements e.g. the skin of dogs.12 The Malikies
allow currency as well. This confirms current practice of waqf institutions who keep their funds in
investment accounts of Islamic Banks. Similarly, the same thought applies to waqf of shares, stocks and
bonds and securities, the return of which are spent on charities. The Malikies go a step further by allowing
the rental of houses or any other property to be given as waqf and spent on good work in the society.
Nevertheless, it might useful to note that the recent opinion in the Hanafi school allows currency.
According to Ibn Abidin, the custom and practice in Muslim Roman states who donate currency
(darahim/dananir) to waqf come under the opinion of Imam Muhammad that the subject matter of waqf
can be any movable property if such is the general practice of the community 13.
The characteristics of waqf
The main characteristic of waqf is perpetuity that it shall continue. The first practical effect of this
characteristic is that it should be maintained all the times, to some jurists this is the main obligation of the
administrator of the waqf . It is, therefore, necessary to spend its revenue on its revival, revitalization and
development so that it could contribute to the welfare of the coming generations. This spending is
mandatory, as there would be no perpetuity if the property were left to ruin. 14 Another effect of this
principle is that the majority of the waqf property is real estate which by nature is non-liquid. Jurists even
prefer exchange of estate by an estate. As such, the majority of the waqf funds have little cash on their
hand, thus insufficient, even to maintain the real estate. This is so because waqf funds not only need the
real property but also labor as well as an impale amount of cash in order to pay for the work done on
maintenance, change or exchange of the waqf property and development of the real property. Waqf fund
needs constant supervision and professional management and administration. It is the first duty of an
administrator to work in the best interest of the fund. This duty can be discharge only if one is
professionally trained, otherwise the development of its property is useless. For instance, if a land is
developed for a hotel, it is necessary that the administrator shall have qualification for such task so that the
waqf can generate revenues. To do so either the administrator shall be professional or he shall employ
professionals. This will require cash for purposes of wages and purchase of modern equipment necessary
for efficient management of the funds. 15 As the waqf funds have no cash on their hand the development of
land irrespective of how large is its size, seems very difficult. It is this reason one has to emphasize on the
subject matter of wagf to be more than real property i.e. cash, labor, usufruct etc. Those who adhere to the
perpetual nature of waqf , may be convinced by the current practice of amortization of accounts, buying
shares, and stocks of a company. It will fulfill the condition of perpetuity, as the amortized account remains
untouchable and shares would exist as long as a given company exists, the later being perpetual by nature.
Legal personality of waqf
The Hanafies do not recognize expressly legal personality of waqf but ultimately they seem to do so, as
they allow the administrator to buy and sell for the waqf and claim any value he has paid on behalf of the
10
Immovable property according to Hanafis applies to land alone.
11
Ibn Qudamah, al-Mughni wa al-Sharkh al-kabir, Vol. 6 P 237
12 Hashiyah Dasuqi, w. Sharh al-Kabir, vol. 4 P. 75
13 Ibn Abidin Radal Muhtar Vo. 4 P. 364
14 Anas al-Zarqa: “al wasail al-Hadithah li al-Tamwil wa al-ihtismar” – in Idara wa Tathmir al-Mumtalakat al-Awqaf,
Jeddah: IDB, [1994], p. 184.
15 Ibid.
5
waqf from waqf properties. The Shafi‘ies accept legal personality tacitly. The Malikies, however, are
express to consider waqf as legal person. As far the Hanafies are concerned. Based on such rulings modern
law in Jordan, 1966, S.4, Iraq 1983 (Amendment), Yemen 1968, Malaysia, Administration of Islamic Law,
Lebanon 1959, 1980 have recognized waqf funds as body corporate and therefore can have legal
personality that the waqf can incur debts and obtain loans.
The Administration of waqf
A.
Individuals
The power to manage the waqf property is vested in the founder himself, those the founder
appoints as such, and to the administrator of the estate of the donor after his death. In case the
donor does not appoint an administrator and passes away intestate, the power to manage the waqf
property is vested in the beneficiary of the waqf if the beneficiary is specified and has attained the
age of majority. Otherwise the power is vested in the guardian of such person.
B.
The State
In case there is no administrator, and the beneficiary or his guardian cannot be found, the state can
administer the property based on its public authority.
Where the beneficiaries are unspecified and the donor has not appointed any one, the first
authority to manage the waqf estate is vested in the state.
The qualification of an administrator
A person is qualified as an administrator of waqf if he could:
1.
3.
Supervise, and manage the property wisely and is trustworthy and fair;
Has the ability and qualification to do so.
The lack of any of such abilities and attributes disqualifies the administrator from managing the waqf
property even if the beneficiary is a discerning child, or the person is the donor himself. The power to
disqualify is vested in the state.16
The Duties of administrator
A waqf property is like that of an orphan where trust (amanah) and good care of the administrator is
required by Shariah. It is a condition that the guardian shall work at the best interest of the orphan.
Similarly, he shall not give away funds for purposes, which can be satisfied by other means, and shall save
extra cash in order to deliver the required services in an effective manner.
The most important duty of an administrator is to develop the waqf property, rent or lease it, receive the
income, distribute the income on the beneficiaries, to pay attention to all details of the waqf and its
beneficiaries and if the administrator is the donor himself to appoint another person or disqualify him as
such. Should the donor appoint another person at the time of creation of the waqf , the donor is barred from
dismissing him later, for once the undertaking is considered concluded, the donor ceases to have any power
and control over the waqf which is also true about any other person.
The administrator shall study the feasibility of every proposal for development, and the methods for their
execution. This point is needed to be considered because every economic venture is presumed to be at
loss.17 Every development project involve experts such as land surveyor, development and policy experts,
real estates managers, planners, market and construction analysts, etc. To be certain about the feasibility
16
17
al-Sharbini, Mugni al-Muhtaj, vol. 2, pp. 393-4, Ibn Abidin Vol. 4 p. 38
id. p.189
6
and profitability of a venture, he must approve a project that is approved by all experts. Despite such
approval, it is still necessary that the administrator should pay close attention to the period of the validity of
such an approval, for a study data and analysis may be accurate now but may not be so by then. 18
Furthermore, due to the interest of the institution, it is advisable that the waqf fund shall undertake
development projects by itself or under its own control by purchasing the raw materials, construction and
labor.19
Contents, conditions of the document of waqf and their interpretation
The contents and conditions of a document of waqf may be classified as, lawful, unlawful, and harmonious
or otherwise with the objective of the waqf . Jurists agree that all lawful conditions inserted by the donor
are binding on the administrator of the fund. The administrator cannot change them or abort them. Thus the
donor may expressly make the waqf for the benefit of students, appoint a specific administrator,
beneficiaries, the method of distribution, the authority of the administration to distribute the funds
according to his own discretion, payment of debts owed by his heirs when they fall due.
Conditions that are against the law of Islam or contradict the objective of the document of the waqf are
considered not binding. For instance, the condition to sell the fund or give it as a gift to someone, to be the
property of an heir, or to include or exclude anyone according to the discretion of the donor20 such
conditions are considered invalid and are, therefore, not binding on the administrator. Conditions, which
are contrary to the objective of the waqf , for instance, that the income of the fund shall not be spent on the
damaged parts of the property, are void but the document of undertaking would be valid.
Substitution or change of the conditions
As mentioned early, valid conditions are binding on the administrator and the voidable ones are not while
the document remains effective. There may be, however, conditions, which may harm the fund or the
beneficiaries, for instance the condition that, the waqf property shall never be the subject of change or
exchange. Yet when the property is damaged or ruined, or that the income therefrom equals the expenses
and there are no funds in the waqf to finance its revitalization or reconstruction the court has the power to
change the conditions. Similarly, there may be conditions which result in exploitation of the administrator,
for instance determination of remuneration of the administrator less than the wages of an employee in the
customary labor market, in such circumstances, the court can change the conditions. Such changes by the
court are allowed if the trust is established for the benefit of a large class of beneficiaries. In case the trust
is for a specific person or persons, the power to alter, substitute or remove the conditions is vested in the
administrator, though it is better to do so by an order of court. 21
Change/Exchange of waqf property (ibdal/istibdal)
Ibdal means to sell the property. Istibdal mean to sell one piece of land and buy with its purchase price
another property.22 Some Malikies and Shafi‘ies allow change and exchange of waqf property. The
Shafi‘ies do not allow a mosque even if it is ruined and its rebuilding is impossible, but has given different
opinions in a land that does not produce any beneficial thing. In the latter case some jurists of the school
allowed the change and exchange of the given piece of land.23 According to Hanbalies exchange of the
property of waqf, if so necessary is allowed provided the purchased land is considered waqf too in the same
18
id. p. 190-1
id. p. 192
20 cf. First provision of the directive given by Sudanese Supreme Court. They allow repudiation of waqf by the
founder, or change of the terms of the document if pronounced by court (p.2). According to p.4 repudiation is valid in
family waqf .
21 Dasuqi.p.88-90, ibn Qudamah, Mughni, vol. 6, p.195; Sharbini, Mughni al Muhtaj, vol. 2, p. 385
22 Abu Zahrah, al-Muhadarat fi al Waqf , p. 161
23 Mughnial-Muhtaj vol. p. 392.
19
7
category as the first one.24 The Hanafi jurists have unanimously approved the process of ibdal and istibdal.
They have classified istibdal into:
1.
The donor makes provisions thereto,
2.
The donor does not make any provision, that is if he negates or is silent about, but the property
reaches to a state of being that it does not produce anything, or its expenses and produces are
equal. In the both cases istibdal is valid.
2.
The donor provides for istabtal and the property still productive, but its exchange is more
profitable in general. In this case, istibdal is not valid. Thus it is the discretion of the donor to
make such condition. If the founder is silent, then change or exchange of the property is allowed
only if it is necessary but not when doing so is more beneficial.
Istibdal shall be made by the state (court) in general philanthropic trusts; otherwise the power is
vested in the administrator.25
Utilization of waqf properties
The general opinion of jurists is that waqf properties shall be rented, according to the market value, unless
reduction is necessary. It is not allowed if the rental is below market value prejudicially thus breeding the
presumption of criminal breach of trust (ghab fahish); should it be below the market price at around fiveper
cent or so, the transaction would be allowed, for such a difference is normal, and unavoidable.
If the property is rented below market value and is known to the parties clearly, but there is a second
individual who is ready to pay the market price, in such a case the administrator has to raise the rental. If
the tenant agrees then priority shall be given to the existing tenant; in case the existing tenant disagrees, the
contract of tenancy shall be given to the second, provided the first tenant has not cultivated the land. If so,
then the increase is binding on the first tenant till the harvest. Once the land is harvested, the contract of
tenancy would automatically be nullified. The increase in rental is binding on the tenant only if the value of
the land is appreciated. Otherwise, increase in the value of land due to the erection of a building or
plantation is not binding, in disregard to the fact whether the improvement by the tenant is brought in
compliance with the demand of the administrator or done so on the initiative of the tenant. 26
According to Maliki, and Shafi‘i jurists increase in the rental of land, when it is in accordance to the market
price, is not binding. If the rental, however, is less than market value, and there is another willing party to
rent the land based on the market value, the Malikies consider the contract of tenancy nullified
automatically even though the existing tenant is willing to pay the difference. 27
Where the property of waqf comprises house or other building, the period of tenancy shall not increase
more than one year. In case it is land, the period of tenancy is determined to be two years as in case of
family waqf and four years in the case of charitable endowment.
Redevelopment of ruined or damaged properties
Classical views
Due to the fact that many waqf properties are often either ruined or underdeveloped, Muslim jurists were
compelled to think about the productive development and utilization of the property. The conventional
24
Al-Mughni, vo. 6, p. 225.
Ibn Abidin, Radul Mukhtar, vol. 4, p. 384.
26 Ibn Abidin, vol. 4 p404-5, 391.
27 Dasuqi, p. 95, Sharbini, Mughni al Muhtaj, vol. 6 p. 395.
25
8
thought on this point is that the development of the waqf property should be carried out physically. This
can be done by the following ways:
a.
To lease the property for a long period based on an agreed amount, whereby the leasee
uses his capital to develop the land and pays to the waqf institution a lesser amount
annually. This right should be transferable and inheritable. 28 The building and plantation
in this case would be the property of the leasee. 29
b.
Contract of two leases: To lease the property renewable yearly, and to demand a sum that
is sufficient to revive or develop the property.
The difference between the above two is that in first instance the right in the development
remains with the leasee while in the second the right remains with the waqf . The second
is proposed to conform with the view of those jurists who do not allow extended or long
tenancy.
c.
Mersad: The administrator or the judge allows the tenant to develop the land and the
incurred expenses shall be a loan on the waqf , payable by the waqf on installment. The
building or plantation shall be the property of the waqf but the developer would have
proprietary rights which shall be transferable and inheritable, provided the transfer to
another party is done with the approval of the court or the consent of the administrator of
the waqf .30 Anas al-Zarqa proposed that this could be done based on the contract of
istisna‘ or deficient partnership. This method is common in Sudan where the developer
constructs a building, and then rents it out according to the market value. 31
The second approach to development of waqf property is the
a.
b.
c.
d.
selling of a part of the waqf property in order to develop the remaining parts of
the same property;
selling a bundle of waqfs (i.e. properties) and buying new one in exchange, to
be used for the same purposes of the sold properties;
selling one waqf and buying another having a common purpose;
Selling a handful of properties belonging to various waqf s, and buying a new
property which has higher income, and the same revenue is distributed on all
sold waqfs according to their value, or dividing the purchased property on
original waqf s according to their value.
All the above is possible if one accepts the views of Hanafies, provided the donor allow
exchange and change of the waqf property or it is so due to necessity which is also the
view of Hanbalies, and an opinion in the Malikies and Shafi‘ies with an exception of
mosque.32
Contemporary thoughts and suggestions
Securitization of waqf properties
Walid Khairullah proposed the securitization of waqf property.33 According to Walid the administrators of
waqf may study a project where its expenses and the expected profits are clearly estimated and projected.
Based on such a study, under supervision of a professional committee, it can issue bonds equivalent to its
28
Ibn Abidin, Hashiyah vol. 4 p. 391. This shall be the last resort of development. In case amount is big, it shall be
used to finance other developments: Anas al-Zarqa, p. 194.
29 Anas p. 195
30 Mustafa al-Zarqa, Nazariyyah al-Iltiam, pp. 48-51.
31 Al-Amin “al-Waqf fi al-Fiqh al-Islami”, in Idarah wa Tathmir al-Mumtalakat al-Awqaf, p. 135
32 id. p. 135
33 Wali Khairullah, “Sanadat al-Muqaradah Ma ‘a Halat Tatbiqhi” in Idarah wa Tathmir Mumtalakat al-Awqaf, p. 151.
9
estimated value comprising also costs of labor and resources during the construction. . The date of maturity
shall be specified and that the bonds shall be secured and guaranteed by the government payable after
maturity and after the waqf is unable to pay the sum loaned. Such a guarantee of the government shall be
in the form of benevolent loan to the waqf (Qurd Hansan). Upon completion, it can distribute the generated
returns from the collection of rentals among the bondholders, while at the same time the waqf shall buy
such bonds from the bondholders until the whole amount is paid to the bondholders.
Some jurists do not agree with this method of finance based on two reasons:
This is not a case of mudarabah for the bonds are merely documents of acknowledgement of the longterm interest bearing loan – debentures – where a percentage of the revenue is payable to them. Even
though one accepts these bonds based on mudarabah, there remains the problem of guarantee by the
government, for it is the waqf which ultimately pays to the government, therefore, the guarantee of the
government is the guarantee of the waqf. Hence it is not mudarabah for the manager of fund in
mudarabah does not guarantee the capital. This objection is however rejected by other jurists subject to
certain conditions, in the subsequent conferences. 34
The opponents of the finance by way of mudarabah, however, proposed musharakah mutanaqisa.
Nevertheless, it has been contended that deficient partnership (musharakah mutanaqisa) is feasible only in
private properties not in waqf . It seems, however, this view is too hasty to be accepted. The offer for
shares and stocks in the landed property would mean that the waqf sells a portion of the property
conditional on being repurchased, in order to develop the same transacted land together with the unsold
portion of the waqf . Thus the development of the whole lot should be considered a joint venture between
the subscribing public and the waqf . Waqf , being considered a legal entity, can join the public to develop
the land. It shall be made clear that in this instance the public is not member of the waqf . It is rather the
waqf who sells a portion of the land for subscribed amount and together, waqf the owner of one portion,
and the public the owner of the other, jointly develop the land. In this case there would be a need to form a
new company comprising the waqf , and the public. Therefore there is no question as to the waqf land
being owned by an individual. It must be further noted that this form of finance for redevelopment of waqf
properties is approved by majority of jurists.35
Other Finance models
-
Istisna‘ (contract of manufacturing) the financier agrees with the waqf to construct a building where
the financier will pay for the costs. 36 This method is considered ideal for finance.37
Al-Bai‘ ma‘a taqsit al-thaman (sale and repurchase of property based on installment); 38 this should
be preferred if the land is dead and costs too little. 39
Al-Ijarah (tenancy): tenancy should be given for 30 years
Problems in the finance of waqf properties
Istina‘: the inherent problem in this method of finance is that it requires at least the capability of
financeg a part of the project on part of waqf , which is not practical most of the times, for some
waqf institutions have no liquid assets at all.
Musharakah: The waqf may receive less returns as the land may not have higher value, and
subsequently the waqf may not be able to pay back to the shareholders on time, therefore it would
not be able to buy back the given property as was planned. 40
see Nazih Hammad, “Asalib al-Istithmar al-Awqf wa Aussas Idaratiha”, in Abhath Nadwa Nhwa Dawr Tanmawi li
al-Waqf , al-Kuwait: Wizarah al-Awqaf, 1993, pp. 173 at 187, Mahmud Ahmad Mahdi, Tajraba al-Bank al-Islami,
Abhath Nadwah, p. 74.
35 ibid
36 id. p. 185
37 Mahmud Ahmad Mihdi, Tajrabah, p. 88.
38 Nazih Hammad, above
39 Mahmud Ahmad Mihdi, Tajrabah, p. 88
34
10
The proposal for development of the institution of waqf
Based on the above problems jurists recommend the following
1.
Promoting charity among public, for purpose of revival of the institution of waqf and resuming its
proper place in the history once again.
2.
Improving on the waqf properties that have been damaged due to constant neglect and the causes
thereto by improving on the organizational structures and recruitment of professionals for
maintenance, and managing them productively by following the Kuwaiti model.
3.
Making legal reforms by following all suitable views in the established schools of law, in order to
find opinions that suits well the present conditions of time. Effective reforms would be
materialized if the experts in shariah and economics as well as in other relevant fields participate
in such reforms.
4.
To make legislation that would not only solve current problems but also keep in view the future of
the ummah. This would be made possible if the managers of waqf fund can develop a formula
whereby a percent of revenue is spent on protection and upgrading of the capital assets. For this
purposes Islamic charitable funds are encouraged to follow the example of Malik Faisal charity,
Foundation, iqra’ charity the fixed assets of which touched SR100, 000,000, Islamic Rescue
Board (Hay’ah al-Ighatha al-Islamiyyah) who keeps the assets and spends from its income.
5.
To enlarge the scope of subject matter of waqf to include immovable as well as currency and
security which can be utilized in agricultural and industrial projects, thus providing employment
opportunities for citizens.
6.
Collection of smaller donations for particular purposes such as providing assistance to patients,
education, scientific research, empowering young entrepreneurs to do business, and funds for
traders and manufacturers who have suffered losses, in order to encourage them to continue with
the same activity.41
Problems faced by waqf funds in the development and revitalization of their fixed assets
The main problems faced by waqf funds in many Muslim countries are
-
Unavailability of sufficient information about the places, the donors and their intention in creation
of the funds, and the non-suitability of some properties for a profitable development.
-
Lack of communication between various funds in Islamic states, and therefore the lack of shared
experience and opinion.
-
Administrative weakness due to lack of professional employees, especially in the areas of planning
and executive branches of such funds.
These problems have been realized by Islamic charitable funds and the issue has been at discussion in
various conferences in collaboration with IDB. So far various scholars have advanced the following
suggestions.
1.
40
41
The creation of an international Charitable Association of Islamic charities to address problems
faced by charitable funds in any of the member countries.
id. p. 81
Salih Kamil¸Muhadarah al-Shikh Salih Kamil , Abhath Nudwah Nahw Dawr Tanmawi li al-waqf , 1993
11
2.
The seriousness of the charitable organization about their role by acquiring essential tools of
development and the provision of opinion and advises to the supervisors of a particular fund.
Furthermore the necessity of providing basic training and development courses.
3.
Providing essential guidelines and sending them to various branches of the fund concerned,
thereby explaining the objectives, feasibility of projects, and opportunities for better investment
and management of the assets of the fund.
4.
Professional training of its officeholder and sending to appropriate seminars and workshops for
enhancement of their capabilities in the management of the funds
5.
The registration of all waqf properties
6.
As a duty, the employment of professionals in the administration of the funds
7.
Drafting reasonable agreements of tenancies by keeping in mind the increase of rental, renewal
thereof, termination of contracts without breaching its terms and conditions, having inserted
express conditions and subjecting the contracts to implied terms and conditions thereof. Further it
is emphasized that the funds shall determine reasonable period of tenancies and provide additional
clauses for prohibiting under contract any activity that runs against the Islamic law or the general
welfare of the community at large.
Waqf properties and their role in sustainable development
Waqf organizations, all over Muslim nations as well in other countries, own huge funds, which could be
estimated in billions, partially liquid and partially fixed ones, the latter being the majority which are
dormant or underutilized. One may exemplify this point by referring to the size of landed property in
Malaysia which reads as follows:
Waqf Land all over Malaysia, 2000 (JAKIM)
WAKAF
NO.
State
Total (acres)
KHAS
AM
171.54 E
133.12 E
304.66
1
KELANTAN
2
3
WILAYAH PERSEKUTUAN 5.47
22.07
27.54
TERENGGANU
204.43 E
43.01 E
247.44
4
SARAWAK
93.9168 hektar + 0.240E +
19489.2sq.metres=236.929E
5
6
7
PAHANG
3984 A 4.14 R 4.08P
SABAH
4.178 E
25.42 E
29.598
JOHOR
1951A. 2R. 23.01P
3976A. 2R. 4.9 P
5928
8
PERLIS
218.69E
8.75E
227.44
9
10
11
12
13
14
MELAKA
773.39E
69.97E
843.36
KEDAH
420 E
423.34 E
843.34/
NEGERI SEMBILAN
1727.35 E
61.25 E
1788.60
SELANGOR
621.10 E
442.15 E
1063.25
PERAK
4474E 3R 30.02P
647E 1R 7P
5122
PULAU PINANG
22.21 E
67.05 E
89.26
Total
14,815.787
5919.83
20,735.61
236.929
3985
12
Out of the above lands some are developed in commercial or housing estates, others are used for plantation
purposes and thus each has handsome returns. Selangor administrators, by 1987, had developed 1,285.4488
hectares.42 In addition to this various states in Malaysia have issued securities and shares in waqf property
the return of which is estimated in millions.43 Considering such returns and the current policy of such funds
by distributing 50 % of its income the prospects for contribution of these funds is substantial. Such
contribution is not only available to Muslims in macro projects they also benefit non-Muslim citizens too.44
It is therefor thought that waqf properties have great potential for contribution to sustainable urban
development both in macro and micro socio-economic projects. It would be useful to mention few
historical examples of role of waqf funds and then its future prospects and bring this paper to its conclusion
by giving examples of few waqf institutions which are currently, side by side with UN agencies,
contributing to sustainable development in various countries.
Historical role of Waqf funds
In addition to mosques seminaries there were several primary or literacy schools which had a large number
of teachers and students. In a literacy school, it is reported that there were 300 teachers, and in Central Asia
the Madrasah Mawara’ al-Nahr al-Waqf iyah had the capacity of 3000 students excluding the teachers, the
panel doctors, and others who were employed in the baths and kitchens of the said school. This school
provided not only salaries for the employees, but also allowances and stipends for students as well as the
animals of the teachers. In Higher education, the Kulliyah Tib Dar al-Shifa (875 Ah) is an example which
had its own training hospital, hostels and kitchen for the students and employees.
These faculties were centers for legal as well as scientific research especially in medicine, chemistry,
pharmacy, languages and astronomy. The famous medical texts such as al-Kulliyat fi al-Tib of Ibn Rushd,
al Haiwan, of al Razi, al-Qanun of Ibn Sina and Tazkira al-Kamalayan of Ali Ibn Isa were produced in
such schools. Several libraries were run by such funds which at the same time were employing hundreds of
librarians and calligraphers, all paid by such funds.
Several hospitals were funded by waqf funds. The famous hospitals of Maristan, Baghdad, Mustashfa al
Mansuri, Arbil Children & Maternity hospital and Shishh children hospital are few to name.
In addition, there were funds for the poor, the needy, travelers, handicapped, animals as well as there were
several lodging centers for people who fit in the above categories. They provided the city with water,
ablution places, public baths and other necessities for city-dwellers; buildings bridges, town walls,
lightening of pathways, as well as dedicating land lots to be used as graveyards.
Prospects for sustainable development today and its effect on economic growth
The distribution of waqf funds among various qualified groups helps economic growth as it move the
parameters of demand and supply in the market. It causes higher demand for various goods and services,
and consequently it brings about higher production of the required goods, which in its chained reaction
helps job market as well as consumer spending. Some of such contributions are mentioned below.
A.
Employment opportunities
Unemployment is one of the biggest problems faced by modern governments. Unemployment is in
fact the cause of political, social and economic ills. Distribution of waqf funds, as proved
historically, solve this problem, as it played an important role in education of a large numbers of
individuals, improvement of their skills and creating job opportunities.
42
see report of Mais on its development projects. The value of 1.3 acre developed into a commercial building is given
at RM 5 million: pengalaman Majlis Agama Islam Selangor (MAIS) dalam memajukan Tanah Waqf dan Baitulmal, p.
9. MAIS report 1987-88. Also see financial report of Maim 1992
43 Id. p. 10;
44 See Kamarudin Ngah 1992 on waqf land rented by Non-Muslims at 73.8 %(shops) and 14.5 (houses).
13
As one of the important functions of waqf is education and training, it gives opportunity to skilled
citizens to teach others, whose students would be capable to support themselves without relying on
government for employment in posts which are not only unnecessary and unproductive but a
burden on national economy.
An example of such project is of the foundation of iqra’ which established vocational schools in
Sri Lanka and Nigeria, the graduate of which became self-employed and productive.
B.
Another area of contribution of the waqf funds is the creation of special funds for business and
trade, where the funds are released based on mudarabah, or purchase of equipment and leased.
This fund can:
1.
2.
3.
4.
C.
finance professionals who can also employ others
finance small and medium industries
family empowerment by proving them smaller sums in order to product basic consumer
products and services, thus helping increase their family income
utilization of agricultural lands, by improving, developing, and cultivating them.
Government Assistance
Historically waqf funds have sponsored three main basic activities of government. They included
education, health and defense. Contemporary Muslim states can utilized such funds for the above purposes
in order to avoid deficit in their budgets and avoid borrowing expensive loans from other countries. This
would be possible only if the governments as well as other organizations play important role in
encouraging public to donate generously to the waqf funds.
Examples
I will conclude this paper with mentioning few Islamic charities which are active in the above activities.
a)
The Association of Iqra’ charity
Assets: One Billion 300,000 SR liquid asset
Activity: Investment
Charity funds – investment revenue
Activities:
Schools:
b)
education, research, schools, medical services, assisting needy
4 vocational schools in each Sri Lanka, Mauritania, Nigeria and Sudan
Assistance to IIU Islam Abad, sponsoring students in medicine,
Engineering etc.
8,000,000 (worldwide)
500,000 (Malaysia for student of Philippine, China and Russia) 45
The Kuwaiti experience
A.
Creation of specialized Funds -Creating special funds for all major sectors of socio-economic
activities half of which are
financed by the existing waqf properties and the other by attraction of new donations
from public.
45
Dawr al-waqf fi Numm al-Iqtisadi Shaykh Salih Abdullah Kamil
14
B.
-
All funds are classified charitable and shall have continued income from fixed assets.
-
Distribution of funds to the recipients is carried out from the revenue generated by the
donated funds.
-
Appointing volunteer as the supervision of the special funds, attraction of new funds,
planning, and the execution of projects according to preceded plans.
-
Management of funds by professionals, for purpose of increasing the revenue.
-
Action plan to be pre-determined where there exist consideration of basics, execution
plan, and the estimated costs of the project.
Development of waqf property
-
Enlarging the scope of development of waqf properties, by educating consumer public
that participation helps increase charitable funds
-
Investment in any project that helps waqf revenues provided such an investment is
viable economically, acceptably legally, and has some positive effect and implication on
secial development
-
Diversification in land development by not only providing housing estate but also other
buildings i.e. schools and then renting them out.
-
Easy accessibility of funds for distribution by keeping the revenue in a special account.
-
Creating new team of professionals in investment who are able to manage funds in nontraditional manner but stay loyal to the basic principles as outlined by the Ministry of
charitable donations.
The experience of the League of the Muslims of Africa (Direct Aid Association)
A Non-Governmental Organization (NGO) based in Kuwait, the League of the Muslims of Africa, or
Direct Aid Association, is a charitable organization operating in Africa. Its main activities comprise rescue
and projects of beneficence as well as educational and cultural projects, its funds and property consist
essentially of waqf or bequest. It specializes in the fields of social development, especially in rural areas,
for the benefit of all people without consideration of tribal, religious or any other affiliation. It is involved
in education by building and managing rural schools (primary; secondary; high school), providing
scholarships and tuition fees, establishing dispensaries, hospitals, health centers, medical caravans, and
food campaigns. This fund also provides water social welfare, building and running orphanage homes
sponsoring of orphans and, and caring for the handicapped. Provides women training, eradication of
illiteracy. Other activities such as nutrition, rescue missions are also included in its programmes.
Up to date First Aid has managed to make half a million African students study in its schools; pays school
fees for 95.000 African students; building and running 34 hospitals and more than 100 dispensaries;
sponsor 8500 orphans; dig 2000 artesian wells and hundreds of surface wells; building a number of dams
in areas of drought. This organisation has also provided scholarships for more than 300 postgraduate
studies in western countries in the fields of medicine, architecture and sciences. The First Aid also has
working relationship with other organisations. It has signed a number of agreements with international and
western organizations, the most important of which are : a cooperation agreement with the World Health
Organization, and other agreements with UNICEF, the United Nations High Commission for Refugees,
the World Food Program and other organizations.
15
The Sar Charitable Institution
It is another Islamic Waqf institution the headquarters of which are in the State of Virginia in the USA. It
has legally independent local branches in Zimbabwe, the Ivory Coast, Canada, Chile, Egypt, Morocco,
Turkey, Malaysia, Russia, in addition to the Sar International in Washington… It has investments in the
sectors of food and agriculture industry, construction, real estate and land development, advanced
technology, textiles, medical drugs, trade and so forth. Its charitable work consists of creation of a loan
and education scholarship fund, sponsorship and support the persecuted Islamic minorities, research and
development.
Islamic Relief
Islamic Relief is an international Non-Governmental Organisation (NGO) that was established in
Birmingham, UK in 1984. It seeks to promote sustainable economic and social development by working
with local communities through relief and development programmes.
In addition to emergency relief its programmes cover sustainable development, emergency relief and
orphan support. Its focus areas are: Albania, Azerbaijan, Bosnia-Herzegovina, Bangladesh, Chechnya,
Gaza Strip, Kosovo, Mali, India, Pakistan and Sudan.
Islamic Relief (IR) has worked in Afghanistan since 1992, responding to natural disasters, emergencies,
and running development projects such as water, sanitation, and micro-credit schemes.
Current activities include work in: Food security, including partnership projects with UN WFP; Drought
Alleviation; Health; Education; Water & Sanitation; Empowerment of Livelihoods; and building basic
community infrastructure
Conclusion
Islamic waqf institutions are the substitute for non-profit organisations in the Islamic world. Its foundation
is charity one that shall be kept and maintained perpetually irrespective of them being cash or fixed assets.
The funds of this nature have several problems relating to its structure, organization, human resource,
development of property, its finance, targeted spending and so on. The most counter –effective
characteristic of these funds is the non-liquidity factor which needs to be addressed through legislative
discretion. This makes it difficult to manage or develop the assets of the fund. Most of financial methods of
the funds are ineffective due to the fact that they have no cash on their hand and there is less attention paid
by the private sector or conventional banks as there is less prospects for profits or they merely consider
such lands off limit. It is therefore advised that the institutions of Islamic charities should refer to Islamic
banks for financing their projects of developments. Once a project is jointly developed the revenue and
income derived therefrom shall be distributed among the waqf and the bank according to their contribution
to the development. In this regard the practice of Islamic Development Bank should be taken as an
example.
It is evident that waqf properties have the ability to contribute to the sustainable development; it is therefore
highly suggested for government and other concerned agencies, in Islamic countries, to take note of this
mater and hence consider waqf funds a source of finance for projects that could enhance the economic as
well as social wellbeing of their citizens.
The institution of waqf is a piece in the jigsaw of sustainable development. The government may contribute
by effective compartmentalization of waqf assets where such assets be used in a manner that lessens the
burden of the government concerned. Area that can be financed by waqf properties and assets be specified
and thus requiring the waqf institutions to focus on, and thus the government can focus on much larger
macro economic projects. The town and country planners in the government can be used as a link between
the institution of waqf and private sector as well the intergovernmental bodies.
It might be erroneously thought that waqf properties, and their development is the monopoly of the
religiously trained individuals. The fact is that this is not the case. The private sector while realizing its
16
social role can contribute to the development of the waqf land by conducting essential survey and the
economic potential for it. Upon presentation of a feasible study it can either develop the land in partnership
with the waqf institution or base on lease whichever is fair and equitable to both sides.
Of course, it might be wishful to expect an overnight change. It is highly suggested that private sector as
well government land administers and planner would show interest in the studies concerning the institution
of waqf, its landed properties especially the regeneration of waqf land as well the techniques of its finance.
17
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